Uninvited guests during preparation of an open house day

Case No. S2016_005:
Decision of 27 June 2016 ¦ “Anordnung Beschreibung (superprovisorisch)”
Decision of 13 July 2016 ¦ “Erledigung Beschreibung”

First things first: Who are the parties?

From the wording of the requests and the feature analysis, it is clear that the patent in suit is EP 0 911 437 B1 of Lässer AG Stickmaschinen (formerly: Franz Lässer AG); see the EPO Register and Swissreg for any further details. Moreover, it is noted in the decision that the patent had been opposed by a connected undertaking of the defendant, but the opposition was dismissed and EP’437 was maintained as granted. The former opponent was Saurer Sticksysteme AG. Thus, it is reasonable to assume that the defendant is Saurer AG (again, see the summary of O2014_009 on this Blog here).

The feature analysis of claim 1 of EP’437 reads as follows:

M1: Embroidery machine, in particular a Schiffli embroidery machine, in which a mobile thread guide (17, 17′, 17″) serves as one of the stitch-forming members

M2: with a row of embroidery locations (S1, S2, S3 …) which can be brought individually into and out of operation

M3: which each comprise an individual thread guide (17, 17′, 17″), which can be brought into and out of operation

M4: with at least one drive member (11, 11′, 11″, 11″‘), with mobile bars (33, 42) for actuating embroidery members (15, 43)

M5: and with coupling members (51, 53) at these embroidery members (15, 43), which may be engaged with or disengaged from the corresponding bar (33, 42)

M6: with a switching member (71, 71′, 71″) for simultaneously bringing a plurality of embroidery members (15, 43, 89, 91) of an embroidery location (S1, S2, S3) into and out of operation

characterised in that

M7: a thread guide bar (37) is provided

M8: that the thread guide (17, 17′, 17″) comprises a thread guide lever (63, 63′, 63″) and a coupling member (69, 121, 131)

M9: that the switching member (71, 71′, 71″) comprises at least one switching rod (75, 75′, 75″) and a member (73) connected to the latter for actuating the switching rod, e.g. a cylinder (73) or motor

M10: and that at least the needle (15) and the thread guide (17, 17′, 17″) can be simultaneously switched with the member (73) for actuating the switching rod and the switching rod (75, 75′, 75″).

The invention can be more easily understood with the figures 1, 4 and 5 at hand:

The plaintiff requested preliminary measures to secure evidence; Art. 77(1) lit a PatA.

The parties had exchanged their views on whether or not a newly to be introduced machine of the defendant infringed EP’437. The machine had also been presented at a trade fair in November 2015 (most likely ITMA 2015 in Milan, November 12-19, 2015; see below). The defendant explicitly rebutted fulfilment of feature M10 — without, however, explicit acknowledgement of fulfilment of the other features M1-M9. Anyway, the FPC held that the defendant had credibly established at least fulfilment of features M1-M6 by prima facie evidence. The request for preliminary measures to secure evidence concerned the remaining features M7-M10. As to these features, the FPC held that fulfilment of feature M6-M9 also seems to be given, and that potential fulfilment of feature M10 is plausible.

In addition, the FPC held that there were further indications of an infringement: The defendant had openly presented the new machine at the trade fair, and the defendant reacted on the plaintiff’s initial inquiry with respect to the suspected infringement. Only when the plaintiff posed more critical questions, the defendant stopped any discussion and the later presentation of the machine was only ‘on invitation’ at the premises of the defendant, at the occasion of an open house day. And this is why there was special urgency: The open house day had been announced for July 1, 2016; the request for preliminary measures was received at the FPC on June 23. Moreover, the plaintiff noted that the enforcement of the measure would likely be frustrated if the defendant would be heard beforehand. The plaintiff had thus requested that the FPC orders the interim measure immediately and without hearing the opposing party. The FPC did so, and the description was executed at the premises of the defendant on June 28. The defendant later on requested that some details were blackened-out from the minutes of the description before it was made available to the plaintiff. Since these details were of no relevance for the claim features at stake, this request was allowed.

It remains to be seen what the plaintiff has learned from the description. Will the findings be the basis for yet another infringement case Lässer ./. Saurer?


There are strong indications that Saurer’s ‘Epoca 7’ is concerned. Saurer’s press release in advance of ITMA 2015 in Milan (November 12-19, 2015) announced the introduction of the new ‘Epoca 7’ with

new technologies […] such as the individual thread guide activation, the newly developed thread delivery and […].

That pretty much resembles the suspicious wording in the invitation to the open house day on July 1, 2016, i.e. ‘individuelle, automatische Fadenleiterschaltung’. I could not find much more information on the actual configuration of this machine, but you might get a first impression from the handouts of Saurer’s press conference at ITMA 2015 (p 26):

Saurer Press Conference at ITMA Milan 2015 (handout, p 26)

The presentation of ‘Epoca 7’ at ITMA 2015 is also available here:

Reported by Martin WILMING


Case No. S2016_005:
Decision of 27 June 2016 ¦ “Anordnung Beschreibung (superprovisorisch)”
Decision of 13 July 2016 ¦ “Erledigung Beschreibung”

Lässer AG Stickmaschinen ./. Saurer AG


  • Preliminary measures, securing of evidence / precise description
  • Fadenleiter

Composition of the Board of the FPC:

  • Dr. Dieter BRÄNDLE
  • Dr. Tobias BREMI
  • Frank SCHNYDER

Reporting judge:

  • Dr. Tobias BREMI

Court Secretary:


Representative(s) of claimant:

Representative(s) of defendant:


Decision of 27 June 2016:

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Decision of 13 July 2016:

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Precautionary taking of evidence: Forensic expert opinion established

Case No. S2013_007 ¦ Decision of 20 June 2014 ¦ “Vorsorgliche Massnahme / Vorsorgliche Beweisführung (Gutachten) gutgeheissen”


The parties were in dispute about the right to an invention. The plaintiff had presented the invention to the defendant, but the defendant alleged that he had already been in possession of this invention beforehand. Certain documents of the defendant with handwritten elements were key. The plaintiff presumed that the defendant had manipulated these documents and requested precautionary taking of evidence, i.e. that a forensic expert opinion be established. The defendant collaborated, provided the documents without even having been orderd to do so. A forensic expert opinion was established accordingly.


According to the Swiss Code of Obligations (Art. 332E), inventions produced by an employee  in the course of his work for the employer and in performance of his contractual obligations belong to the employer, whether or not they may be protected. The plaintiff alleged that he had presented one of his employee’s invention to the defendant, and that the defendant had subsequently applied for a Swiss patent application and a utility model in Germany, in his own name. The defendant alleged that he had been in possession of the invention before it had been presented to him by the plaintiff. In this respect, the defendant referred to technical documents with handwritten annotations in support of his allegation. The plaintiff however presumed that the documents had been manipulated.

In order to substantiate his suspicion, the plaintiff had requested precautionary taking of evidence (Art. 158(1) lit. b CPC), namely that a forensic expert opinion of the documents at stake be obtained. Moreover, the plaintiff  had requested that the defendant be obliged to not allow the Swiss patent application and the German utility model to lapse, without prior hearing of the defendant. The FPC did not follow the latter request but rather invited the defendant to provide his statement of defence. With his statement of defence, the defendant did not object to a forensic expert opinion being obtained. Suprisingly, the defendant even provided the respective documents without having yet been ordered to do so.

Consequently, the FPC obliged the plaintiff to provide a security of CHF 5000,– for the expert opinion, and on 02 September 2014 the opinion was requested from the Forensic Institute Zurich. Only about five months later, the defendant was ordered to not allow the Swiss patent application and the German utility model to lapse. Shortly thereafter, the parties were provided with the forensic expert opinion in early April 2014. Precautionary taking of evidence was thus concluded and proceedings were dismissed accordingly. The FPC set a deadline of 24 July 2014 for the plaintiff to file the main action, subject to the ordered measure (with respect to the Swiss patent application and the German utility model, see above) becoming automatically ineffective in the event of default; Art. 263 CPC.

Based on a value in dispute of CHF 100’000,–, court fees were set to CHF 5’000,–. The final costs for the forensic expert opinion were CHF 4’980,–.

Apparently, the defendant had not been professionally represented in these proceedings. Party costs do only include reasonable compensation for personal efforts in “justified cases”; Art. 95(3) lit. c CPC. This was not held to be the case here, since neither a loss of wages nor a highly complicated case or a very high value in dispute had been at stake. No party compensation was thus awarded to the defendant.

Reported by Martin WILMING


Case No. S2013_007 ¦ Decision of 20 June 2014 ¦ “Vorsorgliche Massnahme / Vorsorgliche Beweisführung (Gutachten) gutgeheissen”

(not identified) ./. (not identified)


  • Precautionary taking of evidence
  • Interim measures

Composition of the Board of the FPC:

  • Dr. iur. Dieter BRÄNDLE (President)
  • Lic. iur. Susanne ANDERHALDEN (Court Secretary)

Representative(s) of Plaintiff:

  • Dr. Hanspeter GEISSMANN (Geissmann)

Representative(s) of Defendant:

  • (none)


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